According to the Agenda of the 2632nd Environment Council meeting, the software patent agreement of 18th of May will be adopted as an uncontroversial item (A-item) Monday next week, see also Cons041217En. Neither the Mertens group yesterday nor the diplomats at Coreper today raised any objections. Several countries made unilateral statements in which they distance themselves from the proposal and point to the European Parliament as the bearer of their hopes.

What Governments can Still Do

Governments are still free to reopen the discussion.

But this task now falls on the shoulders of the fishery or agriculture ministeries and, in part, of Council diplomats.

Some things can be done more or less easily, e.g.

insert a unilateral declaration into the text which states the country's position on the directive (as done e.g. by Latvia, which votes yes for formal reasons but opposes in its declaration)

Places to contact

Comments

It is now up to Agriculture or Environment ministers to prevent the Council from ruining the EU software patent directive project.

The EU Council and Commission are now poised to adopt as their "Common Position" a piece of unreasoned mumbojumbo, which, as everybody knows, does not enjoy support of a qualified majority even in the Council itself.

The national patent administrators on the Council's "Intellectual Property (Patents) Working Party" have discarded the proposal of the European Parliament without even producing an intelligible critique, let alone a coherent counter-proposal.

The Council seems bent on nothing more than to rid itself of a painful dossier, whose discussion the "Intellectual Property (Patents) Working Party" has been evading for years.

Thereby the Council's patent workgroup has brought the Directive project to the brink of shipwreck.

The European Parliament, led by its new rapporteur Michel Rocard, can be expected to reaffirm its previous stance and to gain even higher profile as the center of rational lawmaking in the EU. Yet, under the given EU codecision procedure, this might be a largely symbolic exercise. Just a few months from now, the same national patent administrators would probably use the same evasion tactics again.

Without a major shift of attitude in the national patent bureaucracies that dominate the Council's backroom lawmaking process, the Council will not be willing to face the issues in a second reading either.

The Dutch Presidency seems determined to kick the software patent directive process back to stage zero at all costs.

Although the process has gone on for at least 7 years, we are now once more at the beginning. Currently the movement to restart in the Parliament with another 1st reading is gaining momentum. Another alternative could be to head toward breakup of the directive project. This is in fact what the forces behind the Council have been doing.

Fortunately Europe has a good patent law in place, and we are in no hurry to have a EU directive now. Moreover, we have a fairly well-educated public that is capable of starting legislative initiatives at a national level. These national initiatives could ultimately be taken up by a more enlightened European Commission, which would then lead to the equivalent of a restart.

Also, the last word is not yet said in the Council. The Agriculture ministers can still ask for a vote in their Council. Even if the Common Position is passed, there are chances to have it invalidated by the European Court of Justice. The best solution would still be for the Council to start its own 1st reading in a constructive manner right now. Next week's Agriculture Council presents a last opportunity.

Ante Wessels, FFII NL explained the last option 2004-08-04

There are more grounds to challenge the forthcoming Common Position. The pressure the presidency puts on the new members' governments denies the new members the rights The Protocol on the role of national parliaments in the European Union grants them, the common position will be illegal.

Article 3.6 of the Council's rules of procedure states:

"The provisional agenda shall be divided into Part A and Part B. Items for which approval by the Council is possible without discussion shall be included in Part A, but this does not exclude the possibility of any member of the Council or of the Commission expressing an opinion at the time of the approval of these items and having statements included in the minutes."

I.e., something normally becomes an A item (= formality) on the agenda after all discussions were finished and when some kind of informal agreement was reached previously (e.g. in Coreper, or at a previous Council meeting in the form of a political agreement). Since such informal agreements have no juridical value, one is free to change his/her position between the time that agreement was reached and the time that the issue appears on the agenda of the Council for formal approval.

The rule above shows that it is possible to communicate this change of heart by of expressing an opinion "at the time of approval of these items". Note that this requires great care, since as soon as the Presidency asks whether everyone agrees on that item, one has to act immediately and state the vote has changed.

Additionally, since only a Common Position itself is juridically binding, a (qualified) majority must exist at the time it is agreed upon (the situation when the political agreement was reached is juridically irrelevant). Therefore, stating that your vote has changed always implicitly requires a recount of the votes (without opening a new voting session), to see whether the required (qualified) majority still exists. If it doesn't anymore and the Common Position were nevertheless adopted, it would be illegal and it could be challenged at the European Court of Justice on those grounds.

There are more grounds to challenge the forthcoming Common Position. The pressure the presidency puts on the new members' governments denies the new members the rights The Protocol on the role of national parliaments in the European Union grants them, the common position will be illegal.

Journalist FAQ ?

During the coming days we will see a misinformation campaign pushed through news agencies. They will say that the Council produced a dirctive that allows uniform patentability of washing machines across Europe while preventing US-style patents on pure software and business methods, and that "the directive" is backed by "the industry" and opposed by "open source" groups. A simple FAQ about what happened these days, to be sent to the concerned journalists, might help counter some of this misinformation.

The best medicine would be for journalists to actually read the texts in question, e.g.